Attendance discipline needs care if employee qualifies for FMLA leave

Q. An employee of ours has attendance problems. Before we could counsel her on the attendance problems, she was approved for intermittent FMLA to care for her elderly mother. While she has taken FMLA days for her mother, she also continues to have attendance problems unrelated to her FMLA leave. Can we proceed with counseling and possible disciplinary actions while she is under FMLA?

A. Yes, but tread carefully. You can treat absences unrelated to FMLA leave the same as you would otherwise, provided that you don’t treat this employee any more harshly because she is using FMLA leave. She could argue that since she was not counseled about attendance until she was approved for FMLA leave, you are retaliating against her for using FMLA leave. So, you want to be comfortable that her non-FMLA absences warrant discipline under your policies, and that others with similar attendance problems have been treated similarly.

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